Chief Justice Warren E. Burger: We will hear arguments next in 167, United States v. Ramsey.

Mr. Geller, I think you may proceed now.

Mr. Kenneth S. Geller: Mr. Chief Justice, and may it please the court.

The issue in this case is whether probable cause in a search warrant are required before customs officials may open an envelope mailed into the United States from abroad, when they have reason to suspect that the envelope may contain contrabands or dutiable goods.

In our view, such custom searches of international mail at the border of our country are reasonable in the absence of probable cause or a warrant.

We submit that this position is supported by the backgrounds of the Fourth Amendment, by nearly 200 years of American history, and by the repeated and consistent pronouncements of this Court and of every other Court to have considered the question, save one.

The one exemption is the Court below, the United States Court of Appeals for the District of Columbia Circuit, which held by a vote of two to one, that the Fourth Amendment prohibits customs inspections of what it termed, letter mail, entering this country from overseas, unless the government first obtains a search warrant issued upon probable cause.

The facts released on February 4th, 1974, George Kallnischkies, a Customs Inspector at the General Post Office in New York came across eight envelopes that had been mailed from Thailand to four different places in the Washington D.C. area.

Justice Harry A. Blackmun: Are these fairly sizable envelopes?

Mr. Kenneth S. Geller: The envelopes, Mr. Justices Blackmun, were 8.5x4.25 inches and 6.75x4.75 inches, they are normal sized envelopes used in domestic and international mail.

The envelopes immediately…

Chief Justice Warren E. Burger: That is the size of the envelope.

Mr. Kenneth S. Geller: Yes.

Chief Justice Warren E. Burger: I suppose it would depend in fact on what was in them to determine how big the package was.

I took the question to be how big was the package; did it have one sheet of paper in it, or did it have something more than that?

Chief Justice Warren E. Burger: Can you answer the question in terms of ounces or grams?

Mr. Kenneth S. Geller: Yes, officer Kallnischkies weighed the envelopes because they seemed rather unusually bulky and large, and he determined that they weighed 42 grams, which is about an ounce-and-a-half.

Although an ordinary airmail envelope of that size generally weighs about 7-14 grams.

So they were substantially heavier than a normal size envelope, normal envelope of that size.

Now, other things attracted officer Kallnischkies’ attention and gave him reason to suspect these envelopes.

First, they were from Thailand, which is a notorious source of narcotics.

And second, as I mentioned a moment earlier, they were rather bulky in appearance, and when he felt them they clearly felt as if they contained something other than or an addition to correspondence inside of them.

Justice Potter Stewart: Then are you asking us to infer that there was a probable cause?

Mr. Kenneth S. Geller: Well, Mr. Justice Stewart, the Court of Appeals in an obscure footnote hinted that there might well be -- have been probable cause there.

Justice Potter Stewart: What is your position?

Mr. Kenneth S. Geller: Well, we hesitate to disagree…

Justice Potter Stewart: I thought your position was that there was no probable cause.

Mr. Kenneth S. Geller: Our position is that probable cause is not necessary, and our position in addition is that, using the standards of probable cause…

Justice Potter Stewart: If there was probable cause here we do not need to deal with whether or not probable cause is necessary, because if there was probable cause, then there was probable cause.

Mr. Kenneth S. Geller: Well, if Your Honor’s determine that a warrant requirement should not be imposed on border searches, but that a probable cause requirement may or may not be necessary, I think you would have to reverse the judgment of the Court of Appeals based upon the Court of Appeals apparent conclusion that there was probable cause here.

Justice Potter Stewart: And you agree, are you submitting there was?

Mr. Kenneth S. Geller: Well, we hesitate, as I said, to take issue with that because it is favorable to the government, but we think using the standards developed for probable cause in domestic searches, that it is hard to say that officer Kallnischkies has had probable cause here.

All that he knew is that this envelope had come in from overseas, and that it was bulky; it seemed to contain something other than or addition to correspondence.

Now, I do not know if that would give a reasonable person…

Justice Potter Stewart: Well, I am just inquiring whether your position is that there was probable cause or whether your position is that there was not probable cause.

Mr. Kenneth S. Geller: Our position is that it is difficult to conclude that there was probable cause here, as that standard has been determined for domestic searches.

Because I do not think that a reasonable person could have concluded merely from the fact that a bulky envelope that is coming in from overseas, that a law was being violated, that something was in there that was evidence of a crime.

Chief Justice Warren E. Burger: But when you get off the airplane at any international airport, or when you are about to get off, does the government need probable cause to support the search of your suitcase and your briefcase and your pockets?

Mr. Kenneth S. Geller: It does not Mr. Chief Justice.

The statutory authority for custom searches, which is 19 U.S.C. § 482, requires only that government have reason to suspect that your luggage, or you, or an automobile if you are driving an automobile, or a chattel that you are carrying, may contain contraband or dutiable articles.

Unknown Speaker: But there is no statute that covers the airport and the ships that are coming in, they just do that.

Mr. Kenneth S. Geller: No, I think 19 U.S.C. § 482 is one statute, and there are other basis…

Justice Thurgood Marshall: It covers airport?

Mr. Kenneth S. Geller: It cover every -- that is right, every entry into our country, either at airports or at ports or at the land borders with Canada and Mexico.

Justice John Paul Stevens: But that is envelopes carried by a person coming in?

Mr. Kenneth S. Geller: Well, I think one could assume that the envelopes have been carried by somebody, it maybe a postal clerk as he brings it off the airplane, the envelopes have not gotten into this country on their own.

Our position is that Section 482 of Title 19 covers chattels of every description, and I do not believe there is any case law that has ever suggested otherwise Mr. Justice Stevens.

And in number of the Circuit Courts have had occasion to consider border searches of envelopes and they have construed Section 482 to cover that without any dissent.

Justice John Paul Stevens: Statute is search any trunk or envelope wherever found, in which you may have a reasonable cause to suspect there is merchandise which was imported contrary to the law, that is the language you are talking about?

Mr. Kenneth S. Geller: That is the statutory --

Justice John Paul Stevens: So the statutory authority is to inspect envelopes in which there is reasonable cause to believe there is merchandise in contrary to law.

Mr. Kenneth S. Geller: That is one…

Justice John Paul Stevens: Is that a different standard than the probable cause standard?

Mr. Kenneth S. Geller: I believe it is, I believe it is a much lower standard.

Justice William H. Rehnquist: Do you think after the Carroll case the government needs statutory authority to stop people entering and crossing the border?

Mr. Kenneth S. Geller: I think the standard would be one of reasonableness under the Fourth Amendment.

Now…

Chief Justice Warren E. Burger: You mean at the airport when you get off the plane, they have to have any statute, any standard of reasonableness to open your briefcase and your suitcase and go through it?

Mr. Kenneth S. Geller: Well, I think federal agents have to have statutory authority to operate.

Chief Justice Warren E. Burger: Well, the United States Government can stop and inspect anything crossing its borders, can it not?

Mr. Kenneth S. Geller: That is correct.

Chief Justice Warren E. Burger: That is an inherent power of sovereignty.

Mr. Kenneth S. Geller: That is correct.

We believe that these statutes merely allocate the responsibility among the DEA or the custom service, which agency of the government will exercise that constitutionally based authority, which we believe every sovereign has to inspect articles coming into its country.

Chief Justice Warren E. Burger: At the Mexican border, for example, they can virtually take a car apart and inspect it.

Now, we have held that after it gets away from the border, you need something more, and in some cases it has been indicated when the car is riding six inches lower that it would normally ride, that affords some grounds to believe that maybe it has some people or some substances in the car.

But at the border, is anything required at all?

Mr. Kenneth S. Geller: We believe that the standard is reasonableness, and that is the constitutional standard.

Now, there are also statutory standards which we believe the government has to comply with.

The statutory standard is reason to suspect that contraband or dutiable goods maybe being brought into this country.

Justice Thurgood Marshall: Don’t they have rule now about spot-checking two or three bags, it is more reasonable, is not it?

Mr. Kenneth S. Geller: Well, Mr. Justice Marshall, I think it is reasonable to spot-check bags in an effort…

Justice Thurgood Marshall: Oh, I see, I see.

Chief Justice Warren E. Burger: The only reason they spot-check them is they have not got the manpower and the time to check every one, but do they not have the sovereign power to open every bag, every briefcase, and go into every pocket of every person that is coming across the borders into this country, without any statute?

Chief Justice Warren E. Burger: And why are we worrying about this statutes except that it allocates the functions among different people.

Mr. Kenneth S. Geller: I think that after Congress has passed statutes that may limit the constitutional authority of executive branch officials to carry out searches, there is no question in this case, I might add, that the statute was violated.

The question here is solely one of constitutional law.

Justice William H. Rehnquist: And your position is that the statute may reflect the Congress has intent, that the full constitutional authority of the government should not be exercised, that they adhere to a standard of reasonableness, whereas they would not have to in the absence of the statute?

Now, in our view, Section 482 is coterminous with the Fourth Amendment.

Justice William H. Rehnquist: Well, does the Fourth Amendment impose any requirement at all as to border searches after the Carroll case?

Mr. Kenneth S. Geller: I believe that the reasonableness requirement of the Fourth Amendment would apply at the border, but it is hard to imagine a border search that would not be reasonable except in the way it is carried out, such as very intrusive search, or perhaps a body cavity search.

Justice William H. Rehnquist: Well certainly, Chief Justice’s task language in that case does not give you any impression that there is any limitation on the authority of the government to search at the border.

Mr. Kenneth S. Geller: Well, I think that there is a requirement of reasonableness imposed in the Fourth Amendment, but I think I would agree with the thrust of Your Honor’s question that it is hard to imagine a border search that would not be reasonable.

Justice Potter Stewart: Oh, except perhaps in the manner in which it is conducted, you might want…

Mr. Kenneth S. Geller: Yes, Mr. Justice Stewart, it might be…

Justice Potter Stewart: Tie somebody up by his toes and shake him.

Mr. Kenneth S. Geller: That is correct.

But that goes to the manner in which it is conducted and not to the power to make a search.

Chief Justice Warren E. Burger: Or if I recall the so-called strip or skin searches, which are performed at the borders sometimes, those have required higher standard than mere caprice and spot-check, have they not?

Officer Kallnischkies opened the envelope and found in it, sandwiched between two pieces of cardboard, a plastic bag containing a white powdery substance.

He removed the sample, field tested it, and determined that it was heroin.

The envelope from which the heroin was taken contained no correspondence.

Justice Harry A. Blackmun: No writing of any kind?

Mr. Kenneth S. Geller: Not of any kind, the only thing that was in the envelope, Mr. Justice Blackmun, was some cardboard and some heroin.

Kallnischkies then open the other seven envelopes, which also appeared to be bulky and to contain merchandise and which appeared to have been typed on the same typewriter as the first envelope he opened, and these seven envelopes also contained only heroin and cardboard, no correspondence.

Justice Potter Stewart: All from the same post office address in Thailand?

Mr. Kenneth S. Geller: They all come from Thailand, I am not certain of the way in which the postal authorities in Thailand stamp their mail so it could be determined whether it came from the same post office address.

I am also not certain whether it had the same return address, Mr. Justice Stewart, but it clearly all came from Thailand, and they were all addressed to…

Justice Potter Stewart: That is all we know, that they all came from Thailand?

Mr. Kenneth S. Geller: That is correct, I believe.

The envelopes were then resealed in a lap pouch and were send to Washington, where they were opened by agents of the Drug Enforcement Administration.

Respondents were then arrested, and evidence seized insolent to these arrests eventually led to their conviction on a variety of narcotics offenses.

Divided panel of the Court of Appeals reversed these convictions.

The Court held that officer Kallnischkies’ opening of the envelopes in the absence of a warrant issued upon probable cause violated the Fourth Amendment.

Although the Court acknowledged that border searches have traditionally been recognized as an exception to the warrant requirement to the Fourth Amendment, and although the Court conceded that the Customs agent here had reason to suspect that the envelopes may have contained merchandise subject to duty or prohibited from entering the country, it nonetheless concluded that the border search exception should apply only to packages mailed into the United States from foreign countries, and should not be extended to so called, letter mail, such as it believed was involved in this case.

Now, we believe that the decision below is wrong, and that it threatens a substantial inroad in the government’s ability to detect and to prevent smuggling.

There is, as the Court of Appeals acknowledged, an established border search power.

This Court has referred many times to the legitimacy of that power, as an essential means of protecting our nation’s security and revenue, and inherent right of any sovereign to control the introduction of prohibited or dutiable articles into its territory.

Such searches in the absence of probable cause or a warrant had repeatedly been held to be reasonable within the meaning of the Fourth Amendment, because of the paramount need of the government to know what is being brought into this country, and because the minimal intrusion which the search entails invades areas in which persons have at best only a minimal expectation of privacy.

Indeed as we noted in our brief, the very Congress that passed and adopted the Fourth Amendment also enacted a statute allowing customs officers to carry out warrantless border searchers whenever they had reason to suspect that goods, wares, and merchandise subject to duty were being concealed.

Now, this border search power, as the Court of Appeals agreed, and as we do not understand respondents to contest, allows customs officials to search people, luggage, automobile, chattels of every description, and mailed packages without probable cause or a search warrant as they seek to enter the United States.

This being so, we can perceive no reason or justification to carve out an exception for so-called letter mail entering this country.

This Court…

Justice Harry A. Blackmun: Mr. Geller, will you somewhere comment on what prompted the change in administrative policy in 1971, so that we would know.

Mr. Kenneth S. Geller: Certainly Mr. Justice Blackmun.

Almost a century ago in Cotzhausen v. Nazro in 107 US, this Court observed that our customs laws and border search powers would be meaningless if, and I am quoting now, “If the mail is to be left on watched and all its sealed contents would be exempt from seizure”.

And as this case graphically illustrates, small sealed envelopes, equally as well as a suitcase or a package, may conceal merchandise which Congress has decided may not be brought into the United States or may enter only upon payment to the duty.

Now, the Court of Appeals concluded that while it was reasonable to make a border search of mailed packages without a warrant or probable cause, it was unreasonable to make a similar search of envelopes, sent as letter class mail.

It provided a number of reasons for its attempt to distinguish between envelopes and packages in the mail.

We think that none of these reasons can withstand analysis.

Some of them can be disposed of rather quickly.

The Court of Appeals thought first, that the border search exception was grounded in the notion of exigent circumstances.

It would said the Court be too difficult to obtain a warrant when the subject of the border search is mobile, such as a car or a person.

But the court thought this rationale was somehow inapplicable to letter mail, which it said can easily be detained while a warrant is sought.

So I have already noted however, border searchers do not depend for their reasonableness upon any notion of exigent circumstances.

They have their own practical and historical footing, and this is shown by the fact that while the presence of exigent circumstances has traditionally been held only to excuse the failure to obtain a warrant, the border search is an exception not only to the warrant requirement of the Fourth Amendment, but also to the probable cause requirement of the Fourth Amendment.

I would also add that the Court of Appeals’ opinion is even internally inconsistent on this point.

Since it will allow the opening of mailed packages on to the border search exception, even though such packages, just like envelopes, could be detained while a warrant is sought.

Now, the Court of Appeals also thought that there was no great need to allow routine border searches of letter-sized envelopes because unlike packages or suitcases, there are limited kinds of materials that could be concealed inside such envelopes.

Again, we think the Court’s objection totally misses the mark.

While it is of course true that envelopes cannot be used to transport certain types of merchandise, because by law a letter class mail cannot be larger than 24x36 inches and cannot weight more than 4 pounds or 60 pounds, if it is from Canada, these envelopes are an extremely effective means of transporting other types of merchandise, especially drugs and pornography, which need only be brought into the United State a small quantity at a time to be of substantial value.

The statistics we have reproduced at Appendix B of our brief bear this out, because they show that the number of seizures of these prohibited articles from letter class mail dwarfs the amount found in package mail coming from overseas.

Justice John Paul Stevens: Mr. Geller, do you think there is any question about our right to consider the statistical material you have submitted?

Mr. Kenneth S. Geller: We do not, Mr. Justice Stevens, this was the subject, as the Court will recall, of a motion to strike that the respondent’s made.

We filed a memorandum in opposition to that motion to strike in January, and the Court denied the motion.

I would refer the Court to our memorandum in that regard, if it has any qualms, but we think that the reasonableness of the border search power in this case does not depend in anyway upon the reliability of those statistics.

But I would add that we think that those…

Justice John Paul Stevens: Then we probably do not need to look at them if that’s…

Mr. Kenneth S. Geller: Well, that is correct, and we only provided them because the Court of Appeals for the first time made certain what we thought unfounded assertions about how easy it would be for the government to comply with the requirements that they were setting up in their opinion, and it was only to combat that assertion that we provided these statistics.

We think the statistics are reliable. We have explained in our brief and in our memorandum how they were arrived at.

I would add in addition to that, this is not an unusual procedure; we frequently supply this Court with the best available statistics that the Executive Branch has when we think it might be helpful to this Court’s resolution.

But as I said at the outset Mr. Justice Stevens, we think that the border search power that was exercised in this case was reasonable under the historic and traditional footings, regardless of whether you accept the reliability of our statistics.

Now, the single factor that most influenced the Court of Appeals’ decision was the notion that letter mail may contain correspondence, whereas package mail does not.

The Court thought, and I am quoting now from Page 11(a) of the Appendix to our petition.

“The mere knowledge on the part of individuals of the practice of routinely opening letter mail inhibits the exercise of free speech”.

“We submit that there is nothing to this concern on the part of the Court Appeals”.

First, and I cannot emphasize this point too strongly, customs officers are prohibited from reading correspondence.

Although the Court of Appeals sprinkled its opinion with references to the practice of routinely opening letters, there is absolutely no routine practice by the customs service of opening envelopes containing written matter.

The authority of customs officials to open international mail is strictly limited by law to envelopes that they have reason to believe may contain merchandise.

Beyond that, if an envelope that appears to contain merchandise is opened for a customs inspection, and it is found to contain not only goods but also correspondence, customs officials similarly are prohibited by law from reading the correspondence.

There is a specific customs regulation that covers these situations.

19 CFR § 145.3, which is reprinted at Page 2(a) of our brief states that, “No customs officer or employee shall read or authorize or allow any other person to read any correspondence contained in sealed letter mail of foreign origin unless a warrant is obtained.

Justice Thurgood Marshall: What do they do with the letter?

Mr. Kenneth S. Geller: They do not read it Mr. Justice Marshall.

Justice Thurgood Marshall: Well, what happens to it?

Mr. Kenneth S. Geller: Any envelope that is opened, the stamp is having been opened, and then it is sent on its way if 21:41 excepted.

Justice Thurgood Marshall: But it has to be stamped?

Mr. Kenneth S. Geller: It is stamped under the customs procedures.

Justice Thurgood Marshall: Sometimes you see something, you wonder what happened to the letter?

Mr. Kenneth S. Geller: Well, the current customs procedure after an envelope is opened is to stamp the envelope.

If there is nothing subject to seizure on the envelope, the envelope is resealed and it is sent on its way.

If a letter is found in there, it is left untouched, it is certainly not read.

Justice Thurgood Marshall: It is stamped and opened?

Mr. Kenneth S. Geller: It is stamped that has been opened, that is correct, and I think they put the date and time on it in addition.

Now, in light of the provisions I have just outlined, we contend that there is no justifiable reason to promulgate a broad rule prohibiting warrantless customs inspections of letter class envelopes, for fear of the chilling effect on freedom of expression.

The customs statute is not intended to restrict or to inhibit freedom of expression, and people who desire not to have their international mail opened at the border can easily avoid that result simply by not sending their letters in envelopes so bulky that they appear to contain something other than correspondence.

For example, they may use an aerogram, which is frequently used in international mail; it is a thin piece of onionskin type paper, folded into the form of an envelope.

It is clear that those aerograms contain nothing but correspondence in the normal case, and they are not opened because customs officials have no reason to open them.

They could not possibly have reason to suspect they contain prohibited articles or contraband.

Now, there is nothing in the record in this case to suggest that such mail is opened by customs officials.

Now, there may in fact be legitimate privacy interest involved whenever an envelope is opened, even one coming from overseas.

But we believe that this concerns would at most justify a rule that correspondence seized without a warrant or probable cause, or fruits derived from the reading of such correspondence may not be admitted into evidence.

A rule such as this would fully satisfy the possible invasions of privacy that troubled the Court of Appeals.

But we fail to understand how those interests are protected or furthered by excluding from evidence, merchandise such as the heroin taken from the envelopes in this case.

Justice Thurgood Marshall: So far, as my right of privacy, I do not think it has anything to do with whether you read it in Court or not, I do not think you have any right to read it.

Mr. Kenneth S. Geller: Well, I agree Mr. Justice Marshall, and current customs procedures prevent the reading of correspondence without a warrant.

Now, if you are positing a situation of a lawless customs officer who is willing to violate the statutes and regulations, I do not think that person would be deterred by an exclusion of the rules since he is not reading it in an effort to uncover evidence that would later be introduced in Court.

In fact, it is especially difficult to fathom why an exclusionary rule designed to protect the free flow of information should be imposed here.

Respondents have not argued that their correspondence was read nor could they.

The eight envelopes opened by officer Kallnischkies contain no correspondence.

They contain nothing but cardboard and heroin.

And whatever inhibitory effect border searches of international mail may have on others, respondents were not exposed to it.

By the way, I should at this point clear up a misconception that arises several times throughout respondent’s briefs.

We stated in our brief that available statistics indicate that customs officers discovered contraband or dutiable goods in 20% of the international letter class mail that they open.

Now, respondents conclude from this statistic that nothing but correspondence is found in the other 80%.

This is totally incorrect.

Most of the 80% of the letter class envelopes that are opened and do not contain article subject to seizure are found to contain merchandise that for one reason or another is not subject to a duty.

For example, a gift under $10.00 makes up a large percentage of these letter class envelopes that are opened.

Very few of the letter class envelopes that are opened, there is nothing but correspondence found, and this is of course what we would expect since customs officials are empowered to open envelopes only if they have reason to believe that the envelope may contain merchandise subject to duty or imported contrary to law.

Now, I want to discuss for a moment…

Justice William H. Rehnquist: What if a customs officials sees an envelope that contains nothing thicker than a normal sized letter, but his experience tells him it might be currency that would be subject to duty or subject to some sort of prohibition?

Is he under regulation free to open that?

Mr. Kenneth S. Geller: He is statute and regulations free to open any envelope if he has reason to suspect it may contain contraband and dutiable goods.

In the case you posit Mr. Justice Rehnquist, I assume he could open that envelope, but unless they had a specific tip or reason to suspect that something like currency or microfilm might be included in a very thin envelope, under current customs practice those envelopes are not opened.

Unknown Speaker: There is some risk then I suppose that a customs inspector might think an envelope contained currency, in fact when he opened it up it would contain a letter.

Justice William H. Rehnquist: There is some risk, but under current regulations, he does not read that letter and he merely stamps the envelope as having been opened, reseals it, and sends it on its way.

Now, in response to the question by Mr. Justice Blackmun a moment ago, it is true that in 1971, the Customs Service after consultation with the Postal Service changed its procedures for inspecting international letter class mail, but these changes represent we believe only a modification of prior practices rather than a drastic break with the past.

The important fact to be noted is that, at no time in our nation’s history, not before 1971 and not after 1971, has a sender or addressee of international letter class mail sent into this country ever had any expectation that, that envelope would be delivered to its destination without being opened in the presence of the customs service.

Now, from 1924 when the Universal Postal Convention first allowed dutiable articles to be inserted into letter class mail, until 1971, the practice of the Customs Service and the Postal Service when they receive the letter class envelope apparently containing merchandise as follows, they would send it on, notify the addressee to come to the post office, and they would not turn over that envelope unless the addressee consented to having it opened by the customs agent standing there.

Now, what this effectively did was to give a free rein to smugglers.

Since if their envelopes came through unopened, then they had succeeded, if on the other hand, their envelope was stopped and they were notified to come to the postal service and pick it up, they would simply refuse delivery.

Under the Universal Postal Convention at that point, the letter had to be sent back to the country of origin, unopened presumably, where the sender could try to send it again and hopefully it would get through a second time.

Mr. Chief Justice, I would like to reserve the balance of my time.

Chief Justice Warren E. Burger: Very well.

Unknown Speaker: Mr. Geller, do you think that the drive against narcotics was impart responsible for the 1971 change?

Mr. Kenneth S. Geller: Yes, it was.

In…

Unknown Speaker: This is what I asked, and I am wondering why the 1971 change?

Mr. Kenneth S. Geller: Well, obviously the amount of contraband coming into this country begun to grow and grow each year from 1924 to 1971.

In addition, in the late 1960s, there was a drive to cut off other sources of smuggling.

We intensified our efforts, for example, at the Mexican border, and this all contributed to making the use of envelope as a much more attractive way of getting contraband into this country.

Chief Justice Warren E. Burger: Mr. Palmer.

Argument of Allan M. Palmer

Mr. Allan M. Palmer: Mr. Chief Justice, and may it please the Court.

As we see at the border search statute continued, concerned 19 U.S.C. § 482, which was the progenitor of what is considered in the Carroll case, does not when looked at in historical perspective, allow for the opening of international letter mail.

When you read the statute in light of its history and genesis, especially when it was enacted in -- 1866 was the first time that the statute allowed for the opening of trunks or envelopes wherever found.

It is patently clear from a reading of that statute in its entirety that the statute only was concerned with trunks or envelopes, wherever found, on vehicle, beast, or persons at the border.

Indeed in 1970, when Senator Ervin objected to these changes that came about in 1971, that was just discussed, the then General Council of the post office, and it is recorded at Footnote 5 of our brief indicated, that there are not, and I am quoting from the Congressional record.

“There are not statutory provisions dealing specifically with the customs treatment of any type of incoming foreign mail”.

Thereby, rejecting the notion that 19 U.S.C. § 482 allowed for such inspection, at least in the view of the General Council of that department, and…

Chief Justice Warren E. Burger: Or maybe he did not know about this statute that appears on the appendix of the government’s petition for search, presiding and to search any trunk or envelope wherever found, in which he may have reasonable cause to suspect and so forth, maybe he did not know about that.

Mr. Allan M. Palmer: I find that hard to believe Chief Justice, that the General Council of the post office concerned dealing with customs day-to-day, would not know or be apprised of this statute, I frankly must reject that.

Chief Justice Warren E. Burger: If he did not know about it then he was disagreeing with this statute, was not he?

Mr. Allan M. Palmer: Well, assuming he did not know about it, but I cannot…

Chief Justice Warren E. Burger: Is there any other alternative; either that he didn’t know about it, or he did not agree with it?

Mr. Allan M. Palmer: The only alternative I can say is he knew about it and did not think it applied to the circumstances at hand.

Chief Justice Warren E. Burger: But he did not think envelope in the mail.

Mr. Allan M. Palmer: Well, I think, like I did, he viewed the history of that statute, the progenitor of it in 1866, is clear that it only concerned with envelopes or trunks on person, vehicle, etcetera, and that the present statute is merely a shorthand version of it.

I think the reading of it, and the Court gets to that, we will see that is abundantly clear.

Furthermore, the Carroll case alluded to by Justice Rehnquist makes another point in so far as this border search is concerned, and it spoke of the border search; it was extrapolating that to the whisky and the car that they sought to stop without a warrant.

In viewing the border search statutes what they said were enacted, contemporaneous with the Fourth Amendment and this nation’s history.

That even then, when dealing with the border search, the statute, the foundation statute, enacted at the beginning of this nation made a distinction, even where dutiable goods were concerned, where items that were subject to disappear into the country.

When a man and his trunk can disappear into the country, the statutes indicated, and the Court held reason of exceptions to the warrant requirement, that there was no warrant required because of the exigency of the situation.

The individual and his wares would disappear into a still rugged country, and for that reason the warrant was not required.

However…

Unknown Speaker: Let me read you this language from Page 154, the Carroll case, and ask you if you think it is consistent with the explanation that you just gave.

This is Page 154 of 267 US.

“Travelers maybe so stopped in crossing an international boundary, because of national self protection, reasonably requiring one entering the country to identify himself as entitled to come in and his belongings as effect which may lawfully be brought in”.

I myself do not get any sense that disappearance out of that language.

Mr. Allan M. Palmer: In reading the opinions in its entirety it is clear that the Court in Carroll in that language was speaking about the travel at the border as he entered, and the danger of him disappearing without the opportunity to get a search warrant for him or his wares.

The Court in Carroll itself, as we read it, drew the distinction when these items, dutiable, that had come across the border were in a possession to be searched via a search warrant, the statutes themselves, these foundation statutes, require the customs people to in fact get a search warrant regardless of the fact that these were dutiable goods, had come across the border, and the like.

I think for that reason the Court in Carroll, which was possibly one of the only cases that got into this matter in some detail, clearly makes the distinction between a movable situation, ambulatory situation, and a permanent situation.

In fact, that was the basis for its ruling under the Volstead Act in saying that the car, because it could disappear, there was no warrant required.

Unknown Speaker: Well, my point is that it seems to me the justification offered for the border search in Carroll is quite different than the justification offered for the search of the automobile.

Mr. Allan M. Palmer: Well, I think that the two coincide as -- I would read the opinion.

“In any event…

Unknown Speaker: Where do you think in, if you note at the moment, in the sequence of the passage of these various provisions, at what stage did this language come in?

Customs employees have responsibility for resealing or repacking mail of foreign origin following customs examinations.

Mr. Allan M. Palmer: Must be a regulation, I would think Your Honor.

Unknown Speaker: You do not know at what stage that came in, in terms of the sequence, you were speaking of the 1866 statute and…

Mr. Allan M. Palmer: I am not sure of the exact sequence, Your Honor, but we have it laid out in our brief.

Unknown Speaker: Mr. Palmer, what will happen if the government had just held the letters?

Mr. Allan M. Palmer: That is one of our points, Your Honor.

Under the Yvonne Lewin (ph) Doctrine, nothing would have happened, they had the right to hold it for up to 29 hours, except to probable cause…

Unknown Speaker: Just held it forever?

Mr. Allan M. Palmer: Excuse me?

Unknown Speaker: Just held it forever, who could complain?

Mr. Allan M. Palmer: I think the addressee.

Unknown Speaker: What about the addressor?

Mr. Allan M. Palmer: Of course, I think he could complain that his mail was not being delivered?

Unknown Speaker: You mean people come up from Thailand and object?

Mr. Allan M. Palmer: Well, in the particular circumstance in this case, possibly they -- course they would not, but we are talking about mail as such.

Unknown Speaker: So if they just held it, you know and I know that the people would not have come for it.

Mr. Allan M. Palmer: Probably not.

Unknown Speaker: So everything would have been fine.

Mr. Allan M. Palmer: Excuse me?

Unknown Speaker: Everything would have been all right.

Mr. Allan M. Palmer: Under that sort of facts whoever -- under the facts as we have them, the opening we believe violated the…

Unknown Speaker: You do not agree that inherent in any government, in any country, is the right to protect its borders?

Mr. Allan M. Palmer: Of course, that’s…

Unknown Speaker: In any way it sees fit.

Mr. Allan M. Palmer: But Your Honor I think…

Unknown Speaker: In any way it sees fit.

Mr. Allan M. Palmer: I do not believe that is true, blanketly, no sir.

I think -- I do not believe…

Unknown Speaker: The limitation comes from where?

Mr. Allan M. Palmer: Excuse me?

Unknown Speaker: Where does the limitation come from?

Mr. Allan M. Palmer: I think the limitation comes from, as far as we can gather, the historical fact is concerning the border searches and the question of exigent or whether or not it was time to obtain a warrant.

The Carroll Case as we alluded to clearly makes that distinction.

Unknown Speaker: And I suppose Congress can limit its own -- the power of the government, can it not?

Mr. Allan M. Palmer: Of course.

Well, in this situation with these statutes -- the government is relying on these statutes, and, as counsel indicated in getting -- allowing for the opening of the mail, so if that is true, it would be that limitation that was exigent.

Now, historically for the first 195 years of this nation’s history, never did the customs people acting alone seek to open this kind of mail, letter mail.

They delivered it, required the addressee to get there, if you refused, it was sent back, or they could get a search warrant if they sought to enter the privacy thereof.

But never in this nation’s history until 1971 did the customs people ever think, exercise, the power that was exercised in this case to enter the mail.

Unknown Speaker: Where did you get that?

Mr. Allan M. Palmer: The government’s brief, Your Honor.

Unknown Speaker: Mr. Palmer?

Mr. Allan M. Palmer: Yes, sir.

Unknown Speaker: I interrupt you a great deal, may I just be sure I understand your position.

You say that the statute quoted on the top of Appendix (a) the 1866 statute, cannot properly be construed to authorize opening a mail.

Mr. Allan M. Palmer: That is true.

Unknown Speaker: And is it your submission therefore that there is no statutory authority for the government opening letter class mail?

Mr. Allan M. Palmer: I believe there is no statutory authority.

There was some regulations passed in the Treasury Department, and customs got together and proposed some regulations.

Unknown Speaker: But there is no statutory authority?

Mr. Allan M. Palmer: That is our position.

Unknown Speaker: That is your position.

Mr. Allan M. Palmer: Yes sir.

Now…

Unknown Speaker: And then your position in addition would have to be that it takes for that position to have any meaning, would be that statutory authority is required before the government may open letter class mail, I think?

Mr. Allan M. Palmer: Under the present situation it would appear that would be true, if that power existed, and we are not conceding it does exist, Your Honor.

Now, in so far as the Court of Appeals, Judge McGowan joined by Judge Kahn…

Unknown Speaker: Mr. Palmer, I need to interrupt again, but on the statuary point, your argument is, as I understand, the word envelope means an envelope brought in by the traveler as he returns to the country or some -- is that…

Mr. Allan M. Palmer: That is correct.

Unknown Speaker: If that is correct, what about statutory authority for parcels sent through the mail, is there any statutory authority for that?

You seem to concede, as I remember your brief, that there is -- that, that maybe opened, there is a long practice of doing it, is that within the statute or on some other statutory basis?

Mr. Allan M. Palmer: I do not think it probably comes within this statute, there are probably some regulations that allow for the opening of that.

Unknown Speaker: Well, are there regulations that allow for the opening of this, of letter class mail?

Mr. Allan M. Palmer: But the regulation really does not limit or confine or upset the opening of these packages as we see it, but they cannot expand the right to open the first class letter mail…

Unknown Speaker: It is your argument, I understand, we all understand it, it is a constitutional argument, but I just want to be sure that your claim is that there is no statutory authority for this.

Mr. Allan M. Palmer: I just want to point out that the letters, if you want to see the letters that were involved to the envelopes, there are polo photographs taken by the FBI, exhibits on appeal that can be clearly seen in this case.

Now, the government and the Court below was concerned about the invasion of privacy, right of free expression.

Now, the government by its own figures indicate that 85% of the time or approximate thereto, this mail is open, nothing dutiable or prohibited is found, the customs agent is an error 85% of the time, he finds nothing of a prohibited or dutiable nature.

Then the envelope is stamped and sent to the individuals.

Now, we suggest that that severely limits, inhibits, the freedom of expression, it tends to chill expression.

Now, the Government said, well, they really do not read it, there is a regulation to that effect.

I think the short answer to that can be found in this Court’s opinion in Wolff v. McDonnell, 418 US of Page 539.

In that case, letters, attorney client letters were sent into the jail, was claim as violated, First Amendment rights, shield the expression thereof.

This Court held that, that regulation was all right, because the inmate was required to be present at the time.

This Court said, “Neither could it chill such communications since the inmate’s presence ensures that prison officials will not read the mail”.

By inference we can assume that, if the inmate was not there to insure that, serious questions of chilling that communication would exist.

Now, that is in the context of a totalitarian environment, individuals locked up.

Now, in a free-society can expect no less, that when its mail is opened there are some safeguards to ensure that the petty officials, this customs officers, we are not left to there whim and discretion to open these mail.

Unknown Speaker: Don't you think there is some difference between domestic mail between a lawyer and his client, who is in prison, and mail that is coming in from a foreign country that must pass through the customs inspection?

Mr. Allan M. Palmer: No, Your Honor, I think if I am receiving mail from overseas, I received a letter not too long ago from England, from a friend who wrote to me, I think I have the same right of privacy that inheres and that communication to me, and a petty customs official, I do not believe, should have the right to open that mail at his discretion and whim.

He is wrong 85% of the time.

No one is there to see, to ensure, that he does not read it, as this Court required in Wolff, and I think that is the chilling effect on the opening of our correspondence.

This case concerns not…

Unknown Speaker: This could be a little easier, a good deal easier isn’t it for us to say that the mail going into a prison can have the prisoner on hand within a few minutes to be present, whereas you cannot do that with all the incoming foreign mail, can you?

Unknown Speaker: Oh, which part of my suggestion, that you cannot get them there in a few minutes?

Mr. Allan M. Palmer: The second part.

For the first 195 years or thereabout since the 1971, if incoming mail was suspect, it was delivered to the post office closes to the addressee, and then the postal people notified the addressee to come there.

The very same presence that we have in the jail situations, so I find no difficulty, we find no undue burden, because until 1971 that practice was uniformly followed in this country.

Until 1971 the post office and customs people got together and promulgated a regulation changing that.

Unknown Speaker: For what it is worth of course, your client’s correspondence such in quotations was nonexistent, as I understand it, there was no writing in its envelope.

Mr. Allan M. Palmer: That is quite true, Your Honor, but as we know, as the government indicates, that they open it when they think it concerns something in addition to correspondence.

A search as we know cannot be made lawful by what it turns up.

That fact that it contains these items of course…

Unknown Speaker: I said for what it is worth, these are little hollow sound when you are talking about First Amendments rights with your particular clients.

Mr. Allan M. Palmer: Well, in a particular case, speaking of the nation and the mail as a whole, I think the hollowness recedes to some extent.

Unknown Speaker: I also concede that both Mr. Ramsey’s and Mr. Kelly’s rights have been chilled, I must agree to that too.

Mr. Allan M. Palmer: Well, I think in the -- perhaps therein particular rights and the particular context of this case might not have been unduly chilled.

There was no extreme frost there as we see it, but in any event, I think their rights under the Fourth Amendment were violated, and that is the grapheme of the complaint that we have in this Court.

I think it is important to realize first, that this is the first time in this Court’s history that not only this question, but apparently any question of the search and seizure power at the border, with regard to goods or letters has ever come before this Court.

Much has been said about Carroll v. The United States, that was a 1924 case; that case, that quotation, is pure dictum.

You may recall that in that case, it was a prohibition case, a moving automobile, apparently carrying liquor, moving between Detroit and Grand Rapids, the only question in the case, it had nothing to do with the border, it had nothing to do with customs, it had nothing to do with letters, the only question in that case was whether there was probable cause for the search and seizure.

But in the context of the opinion it is true that the quotation read by Mr. Justice Rehnquist was made.

I will also concede that, that quotation has been much adverted to by this Court, I do not want to deny that.

But this Court has never held that there is a border search exception, as it has been describe here today, not once in its history.

I find no basis in this Court’s opinion for saying that the Fourth Amendment does not operate at the border.

I think some of the language that we have heard here this afternoon suggests that.

I do not believe that the Fourth Amendment does not operate at a certain place in this country.

I do think that the way this Court has approached other search and seizure cases, and particularly the border patrol cases, tells us that when we look at a case like this we use a discriminating standard.

If there is a so-called border search exception, it cannot be a blunderbuss exception for everything that crosses the border, whether there is a need for it or not.

I do not believe that this Court would sustain a position like that.

Chief Justice Warren E. Burger: What about the cases where the opening of the envelope disclosed pornographic pictures, we had that just two or three years ago.

Mr. Irving R. M. Panzer: Yes, 37 photographs.

Chief Justice Warren E. Burger: I see.

You say that there is a probable cause standard at the border itself?

Mr. Irving R. M. Panzer: Well, I think we look at this as a number of different situations at the border, rather than say that everything that crosses the border, whether it moves or not, is detainable or not, is subject to an exception from the entire Fourth Amendment.

For example, persons crossing the border, the Carroll statement; persons are mobile, things they carry with them are mobile, and I think it is fair to say, despite what counsel for the government has said, that the very basis of that doctrine is that here is something which may evade capture if you do not search it at the moment.

Chief Justice Warren E. Burger: Well, at the border, question is whether the person or the thing is going to be admitted into the country, is it not?

Isn’t that the…

Mr. Irving R. M. Panzer: Yes, that is one of the…

Chief Justice Warren E. Burger: That is the whole enterprise of having border guards and all that sort of thing?

Mr. Irving R. M. Panzer: Yes

Chief Justice Warren E. Burger: They are not yet admitted when they are being examined, is that not so?

Mr. Irving R. M. Panzer: That is correct.

I will say that in border patrol cases, one has the right to make a stop to ask a person for his identity papers or something of that sort.

Chief Justice Warren E. Burger: Open his briefcase, his trunk?

Mr. Irving R. M. Panzer: Yes, because that may evade capture if not done at the time.

Chief Justice Warren E. Burger: Don't you also have the alternative there Mr. Panzer of being able to simply detain them at the border, and not open their stuff, if the rationale is simply escape of capture.

Can’t you simply tell them you come over here and stay 24 hours, and we are going to go get a warrant?

The government says if you want to be sure that we do not open your mail, do not send anything bulky.

I think that turns the Fourth Amendment on its head.

I think as the Court of Appeals said, if the government wants to be sure it is not invading your privacy, let them go and get a search warrant.

There is no law that everybody is presumed to be violating the law, quite the contrary.

In response to questions that were put here before, is there a constitutional right to receive, is it only the sender, is it the addressee?

We know that this Court decided in Lamont v. Postmaster General that there is a constitutional right to receive international mail.

And that wasn’t even sealed mail, that was unsealed mail.

There is a constitutional right to receive it.

That right inheres in the addressee and not in the sender, although the sender may have rights too.

But it inheres in the respondents before the Court this morning.

Justice John Paul Stevens: Mr. Panzer, while you pause, I might ask another question.

We have all sort of assumed that there is a distinction between packages and smaller letters.

The Court of Appeals does too.

In your view, in the footnote that Judge McGowan has, footnote eight, what he described, what he might suggest what would establish probable cause to open a letter or an envelope.

In your view, would the envelopes that where involved in this case, and were opened, the ones with 42 grams in weight and so forth, would there have been probable cause to open those under Judge McGowan’s footnote eight, in your view?

Mr. Irving R. M. Panzer: I recognize that he comes very close to suggesting that there is probable cause, but I must disagree with that.

The mere fact that a letter is bulky and comes from a suspected country is not in my opinion probable cause, no.

Justice John Paul Stevens: So you would say no?

Mr. Irving R. M. Panzer: I would say no.

Incidentally, if the Court would like to see the size, the very size of the letters we are talking about, I have prepared these.

Five of the six letters were this size, which is just an ordinary common size envelope, and the sixth was this size, which is something like a Christmas card, large Christmas card.

It is important to realize, if the inspector said that this were letters, he did not think these were packages.

He did not think they contained anything but letter type mail.

Chief Justice Warren E. Burger: Could not he say as to at least one of them that he thought there was something like sugar, powdered sugar or something like that?

Mr. Irving R. M. Panzer: Well, that is true, he said that there was something else in there.

But in response to a question, do you think these were letters, he said…

Chief Justice Warren E. Burger: He tended to respond to the law of gravity when he tipped it to one end and the material went to the far end of the, something along that line.

Mr. Irving R. M. Panzer: No, he did not say that, Your Honor, he said that he often makes that test but could not recall whether he had done it in this case.

All that the record reveals for his cause in this case was that the letters came from Thailand and were bulky, nothing else.

I do not think that rises to probable cause, Your Honor.

Counsel for the government told you that they do not rely upon the statistics in their brief, and that is interesting, because they attempted in effect to intimidate the Court by telling you that a billion envelopes come in every year.

They only have a handful of inspectors.

They can only do so much work a day.

If you do not give them this power, if you do not exempt an entire category, a stupendous category, namely all international mail, if you do not exempt this from the Fourth Amendment, we are going be overwhelmed.

Now, they told you these in Almeida-Sanchez about illegal aliens.

They told you this in United States District Court about the National Security, and they have told you this in case after case.

The Court of Appeals suggested that the problem was not at all that difficult, and I agree with the Court of Appeals.

I think the burden is upon the government to say to this Court that there is no other way to do this.

Now, if they could tell you that, perhaps I would reconsider.

But I think if we can think of some other way to protect the government’s interest, then you ought not to exempt a stupendous category of mail entirely from the Fourth Amendment.

Are there other ways to do it?

Probably there are.

Judge McGowan and the Court of Appeals suggested a number of different ways.

One was the oral testimony of the agent to the magistrate, which if made upon a record, I take it if recorded, would satisfy constitutional requirements.

He said if the problem was large enough you could station a magistrate at Kennedy Airport, or wherever else the problem existed.

There are other solutions perhaps.

We recall that in Almeida-Sanchez…

Justice Thurgood Marshall: Do you know how far Kennedy Airport is from Foley Square were the Federal Court is?

Mr. Irving R. M. Panzer: It is a distance.

Justice Thurgood Marshall: It is about $10 in taxi fare.

Mr. Irving R. M. Panzer: Well, the government has a deep pocket.

But if they wanted to station a magistrate at Kennedy Airport, that would solve the problem.

Another possible solution; akin to the one in 58:12 Camara v. Superior Court, and like the one that Mr. Justice Powell suggested when he concurred in Almeida-Sanchez, a type of area warrant.

Now, in Camara, it was an area warrant for certain houses.

In Almeida-Sanchez, it was suggested that perhaps if certain roads were well traveled, well suspected to be used by illegal aliens, that a warrant would lie for those.

Well, I suggest that here, if the government can show that a certain country or a certain place in a country, certain types of letters, certain handwriting, certain typewriting, whatever it maybe, if the government can show that, that perhaps a type of warrant would lie for that.

Justice John Paul Stevens: Mr. Panzer, to whom should that showing be made, it sounds like a legislative determination to me that you described?

Mr. Irving R. M. Panzer: No, I think it could be made to a magistrate.

If the area warrant could lie in Camara, and if the alien warrant could lie on Almeida-Sanchez, I do not see why this would not lie.

If you cannot make that, then you cannot prove probable cause, and I do not think you should have the right to open envelopes.

Chief Justice Warren E. Burger: Thank you, you have two minutes left.

Justice Lewis F. Powell: Will you summarize once and for all, what the government did prior to 1971?

Rebuttal of Kenneth S. Geller

Mr. Kenneth S. Geller: Yes, Mr. Justice Powell.

From 1924, 1924 was the first time under the Universal Postal Convention that dutiable articles were allowed to be inserted into letter class mail, before that you could not do that.

1924 until 1971, when a piece of letter class mail come into the United States and appeared bulky enough to contain something other than correspondence, there was reason to suspect it contained merchandise.

It did not have a green label on it, if it had a green label that would have been a consent to search from the sender.

If under all those circumstances a letter came in, the addressee was notified that a piece of mail addressed to him had been received, and that there was reason to suspect it contained merchandise, subject to duty or contraband.

He came to the post office and the envelope would not be surrendered to him unless he consented to have the custom service open it, and that was the practice before 1971.

There has never been a practice of delivering these bulky letter class envelopes without opening them.

The only difference now is that we open them at the border rather than giving smugglers the opportunity to refuse delivery and escape detection.

Now, in response to Mr. Justice Stevens’ questions about the statutory authority, I do not know if there really is a serious question here.

It is hard to understand why Congress would intend to exempt envelopes or packages, no one disputes the packages can be opened, from customs inspections.

Certainly the postal services and the custom service have considered for the last 100 years that they have this authority.

This Court considered in Cotzhausen in 1882 that they had that authority, and in none of the Court of Appeals cases has anyone ever questioned the statutory authority to open envelopes, letter class envelopes or packages.

Justice John Paul Stevens: But isn’t the reason nobody questioned it, because the government did not do anything?

Mr. Kenneth S. Geller: Well, the Government has been opening packages…

Justice John Paul Stevens: Well, they took it to the man and said, will you give me your consent, and if he said no, they would not open it, so he did not have the problem.

Mr. Kenneth S. Geller: No, Mr. Justice Stevens, packages have always been opened at the border without the addressee being present under the…

Justice John Paul Stevens: I am talking about envelopes, thought.

Do you say nobody has ever questioned the authority on packages either?

Mr. Kenneth S. Geller: That is correct, that is right.

Justice John Paul Stevens: Oh, I see.

Mr. Kenneth S. Geller: And in fact I believe Cotzhausen might have been considered a package rather an envelope under the Court of Appeals stand.